Immediate Temporary Suspension — Are Temporary for 180 Days Only

Board prosecutors file a petition called an Immediate Temporary Suspension (“ITS”) petition that allows licensing boards to temporarily and immediately suspend licensees’ ability to practice their profession.  These petitions are typically reserved against licensee involved in a Drug Act investigation or sexual assault case.  The ITS suspension lasts, at the most, for 180 days.

The ITS petition must be followed up with a preliminary hearing to address the probable cause alleged in the petition.  A hearing must be scheduled and conducted within 30 days from the date of issuance of the suspension order. These preliminary hearings are limited to evidence on the issue of whether it is more likely than not a licensee engaged in any type of inappropriate criminal behavior supporting a temporary but emergent, suspension. Licensees are entitled to be present at the preliminary hearing, with or without an attorney, cross-examine witnesses, inspect evidence, call witnesses, and offer evidence and testimony.

If the hearing examiner does not find the prosecutor met their burden of proof, the licensee’s license and other authorizations to practice are immediately restored. If the prosecutor met their burden of proof, the temporary suspension remains in effect until vacated, but in no event longer than 180 days, unless otherwise ordered or agreed.

Orders for temporary suspension cases still require prosecutors to commence a separate disciplinary action seeking to suspend, revoke or otherwise restrict a licensee.  This separate action is filed through of a charging document known as an Order to Show Cause (“OSC”). In the OSC, facts are not limited to those alleged in the ITS petition.  The order to show cause is typically filed within the 180 day time, while the immediate temporary suspension is pending.

If a prosecutor does not file any disciplinary action after 180 days, the licensee is able to file a petition for the administrative reinstatement of the license. There is no hearing required and the board shall reinstate the licensee’s license. License reinstatement will issue even if there is a pending disciplinary action.

The post-180 day period is the time after which licenses can get their license back pending disciplinary action. I am currently handling several ITS cases with disciplinary action pending and not pending.  In one case disciplinary action was not filed for over a year. The licensee did not file a petition to reinstate her license and did not engage in the practice of her profession. This was a foolish mistake because absent disciplinary action, her license was subject to reinstatement without restriction after 180 days.  A little bit of research and hiring counsel would have properly notified the licensee of the lack of basis to continue her suspension.

License reinstatement is independent of any criminal prosecution or terms of a criminal sentence. Criminal prosecution can not include in a guilty plea agreement provisions that preclude a licensee from practicing your profession.  Call me to discuss your case.

A Refresher on Unprofessional Conduct in Pennsylvania as it Relates to Convictions for Assault

In preparation for every hearing, I review case law discussing the relevant legal issues.  One such recurrent topic is unprofessional or immoral conduct.  This is the vague Pandora’s box of behavior upon with both license revocation and denial may be based.  What is immoral conduct as it relates to physical fighting and the crime of assault.

One clear case involves a licensed social worker who pleaded guilty to two counts of simple assault, which is a 2nd degree misdemeanor.  The criminal charges arose from the licensee assaulting a former client and the client’s husband. The criminal complaint alleged that counselor had engaged in an affair with the former client and that upon traveling to the former client’s home, she attacked K and T.  The conduct resulted in convictions, for which the Board issued an Immediate Temporary Suspension order (ITS).  This is immoral conduct.  Do not go and assault a former client for anything, let alone braking of a relationship and returning to their spouse.

Another case is Foose v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 135 Pa. Commw. 62, 578 A.2d 1355 (Pa. Cmwlth. 1990), where the Court defines crimes of moral turpitude as “anything done knowingly contrary to justice or good morals.” Foose, 578 A.2d at 1357.  Assault convictions fall within this definition because assaults “are inconsistent with the definition of good moral character [and they] involve a reprehensible state of mind.” “The reprehensible state of mind” at issue with the misdemeanors of which any licensee is convicted “is the knowing or reckless attempt to cause or causing bodily injury to another, or engaging in conduct which constitutes a physical menace intended to put another in fear of serious bodily injury.” A conviction for 1st or 2nd degree assault means you intentionally inflicted bodily injury upon that person.  Your license could be assaulted by the board for such conduct…..don’t let them do it so don’t you do it.

Sometimes a Board will distinguish third-degree misdemeanor simple assault, which involves conduct that may be lacking in a “reprehensible state of mind” that could arise in a situation such as “a fight or flight scuffle by mutual consent.” However, other Boards have been persuaded that intentional appearance at a victim’s home to conduct an assault constitutes a crime of moral turpitude. It is a reasonable interpretation and the appellate courts have concluded such.

In another case involving a teacher and his wife, the governing regulations provided that the only relevant inquiry when questioning whether a crime is one of moral turpitude relates to the particular elements of the crime committed, not to the facts underlying the particular commission of the crime. The regulatory provision at issue, 22 Pa. Code § 237.9(a), provided guidance, defining “moral turpitude” as including “reckless conduct causing bodily injury to another.” Importantly, many professional licensing regulations do not include this specific inclusive language.

Although the definition in the teacher regulations also included “conduct done knowingly contrary to justice, honesty or good morals,” some courts have opined that the term “moral turpitude” as defined in the regulation, as well as the definitions arising in other statutory contexts requires a reprehensible state of mind or mens rea. Thus, it may be an “act of baseness, vileness, or depravity, contrary to the accepted customary rule of right and duty between two human beings.” Such an act requires at least knowledge of private impropriety or the potential for social disruption. Also an act of moral turpitude may consist of intentional, knowing or reckless conduct.  A teacher, hitting his spouse, has been interpreted as depraved conduct warranting licensing revocation or discipline.

In sum, do not assault your partner, your friends, your current or former clients, and especially, strangers.  Call me to discuss your case and any criminal conviction.

 

 

 

 

Criminal Contact and the Licensee’s Mandatory Reporting Reesponsibility

Every day brings new licensing reporting requirements that affect each licensee’s renewal responsibilities.  I reported in October 2015 of the Pennsylvania Nursing Board’s new mandatory reporting of just an arrest, not a conviction, for any misdemeanor or felony.  The questions that have arisen since then range from how long will the renewal time period take to what disciplinary action can I expect.

Every Board is different with regard to how long it will respond to either renew a license or advise of the potential consequence. Each board website contains general admonishments on what documents to attached and the variety of reasons for their dilatory response. One consistent response is to always blame the applicant, licensee for improper or unclear documentation.

 Statements such as “If you have previous criminal conviction(s) and/or discipline on another health license it will take longer to review your application. ” None the less, every licensee can assist in the enforcement review by submitting the following so that a letter does not have to be mailed out requesting these items.

• letter of explanation
• certified arrest and court records or out of state discipline documents
• letters of reference
• current work performance evaluation

Many state board websites include definitions that help explain the reporting requirements.  New Jersey’s states :

Conviction” includes a plea of no contest and any conviction that has been set aside or deferred pursuant to Sections 1000 or 1203.4 of the Penal Code, including infractions, misdemeanor, and felonies. It is not necessary to report a conviction for an infraction with a fine of less than $1,000 unless the infraction involved alcohol or controlled substances. However, any convictions in which a plea of no contest was entered and any convictions that were subsequently set aside pursuant or deferred pursuant to Sections 1000 or 1203.4 of the Penal Code must be disclosed. “License” includes permits, registrations, and certificates. “Discipline” includes, but is not limited to, suspension, revocation, voluntary surrender, probation, or any other restriction.

The following information must be provided for each license discipline or conviction sustained:

1. A detailed written explanation describing the circumstances and events that led to your arrest(s) and conviction(s), including: date and place of arrest; arresting agency; court where case was heard; and sentencing information, including fines, courses, counseling, restitution, probation, parole, community service, and jail or prison time.
2. Documents relating to the arrest, such as: police report, arrest report, booking report, complaint, citation or ticket.
3. Documents from the court, such as: Notice of Charges, Complaint, or Indictment; Plea Agreement, Sentencing Order, Probation Order, or Judgment; Dismissal, Probation Release, or Court Discharge.
4. Any related mitigating evidence or evidence of rehabilitation that you want to provide.

In Pennsylvania, a Board-regulated practitioner who engages in unprofessional or immoral conduct is subject to disciplinary action under section 41 of the act (63 P. S. § 422.41). Unprofessional conduct includes, but is not limited to, the following relevant provision:

(19) Violating a provision of this chapter, Chapter 17 or Chapter 18 (relating to State Board of Medicine—medical doctors; or State Board of Medicine—practitioners other than medical doctors) fixing a standard of professional conduct.

(b) Immoral conduct includes, but is not limited to, the following:

(1) Misrepresentation or concealment of a material fact in obtaining a license or a certificate issued by the Board or a reinstatement thereof.

(2) The commission of an act involving moral turpitude, dishonesty or corruption when the act directly or indirectly affects the health, welfare or safety of citizens of this Commonwealth. If the act constitutes a crime, conviction thereof in a criminal proceeding is not a condition precedent to disciplinary action.

Disciplinary process is also available when a physician is convicted of a felony or being convicted of a misdemeanor relating to a health profession or receiving probation without verdict, disposition in lieu of trial or an Accelerated Rehabilitative Disposition in the disposition of felony charges, in the courts of this Commonwealth, a Federal court or a court of any other state, territory or country.

Moral turpitude” is not defined in the Pennsylvania’s Medical Practices Act but “is capable of being defined as evidenced by court decisions which determine that certain offenses are crimes involving moral turpitude.” “[M]oral turpitude” as “anything done knowingly contrary to justice, [h]onesty, or good morals.” A “[d]etermination of whether a crime involves moral turpitude turns on the elements of the crime, not on an independent examination of the details of the behavior underlying the crime. The Pennsylvania Supreme Court routinely defines moral turpitude to mean anything done knowingly contrary to justice, honesty, or good morals. The terms “good moral character” and the “lack of moral turpitude” are used interchangeably to define each other in many cases. ‘Fraud’ certainly has acquired a peculiar and appropriate meaning in the law. Black’s Law Dictionary 594 (5th ed. 1979) defines fraud as any kind of artifice employed by one person to deceive another.

The provision that addresses reporting criminal conduct on a license application or renewal is more specific as to which offenses must be reported. Section 16.16 contains medical doctors’ legal reporting responsibilities. There, reporting of disciplinary actions, criminal dispositions and other licenses, certificates or authorizations to practice for new applicants states:

(a) An applicant for a license, certificate or registration issued by the Board shall apprise the Board of any of the following:

(3) A finding or verdict of guilt, an admission of guilt, a plea of nolo contendere, probation without verdict, a disposition in lieu of trial or an accelerated rehabilitative disposition with respect to a felony offense or a misdemeanor offense relating to a health care practice or profession.

(b) Portions of applications provided by the Board will be reserved to assist applicants in meeting the reporting responsibilities enumerated in subsection (a).

(c) The reporting responsibilities enumerated in subsection (a) continue after the Board issues a license, certificate or registration. If, after the Board has issued a license, certificate or registration, any of the events in subsection (a) occur, the person shall report that matter to the Board in writing within 30 days after its occurrence.

Some Board’s have regulations that assist them determining which violations are substantially related to the applicant’s license. In California, Title 16, California Code of Regulations, section 1444, states a conviction or act shall be considered to be substantially related to the qualifications, functions or duties of a registered nurse if to a substantial degree it evidences present or potential unfitness of a registered nurse to practice in a manner consistent with the public health, safety or welfare.

 Please call me to discuss you license renewal issues or criminal conduct reporting responsibility.

Summer 2013 DUI Update

So far this summer, Pennsylvania’s Superior Court issued two very significant DUI decisions. The first ruling was handed down the case of Commonwealth v. Musau. The second decision was presented in Commonwealth v. Barker.

In Musau the trial court found Musau guilty of driving under the influence of alcohol in violation of 75 Pa. C.S.A. §3802(a) (general impairment), his a second offense, and graded the conviction as a first-degree misdemeanor pursuant to 75 Pa C.S.A. §3803(b) (4). The trial court sentenced Musau to ninety days to five years in jail.

On appeal Musau argued there was a conflict between § 3802(a) (which carries a maximum of six months supervision) and §3803(b) (4) (that identifies a violation of § 3802(a), 2nd offense, as a first-degree misdemeanor which carries a potential five years supervision). In light of the statutory conflict, Musau argued his supervision could only be ninety days and not five years. Superior Court agreed.

After reviewing the sentencing provisions of the specific DUI statute, 75 Pa. C.S.A. §3802, et seq., and the general sentencing parameters of the criminal code under 18 Pa. C.S.A. §106(b) (6), (e), the court concluded that if an individual is only found guilty of the “general impairment” provision of §3802(a) and not §3802(c) or (d), the maximum potential supervisory sentence is six-months and not five years. The important part of this case is just that: if a court finds a person who may have refused the blood or breath test guilty under § 3802(a) only, as a second offense, and not § 3802(c) or (d), the sentencing maximum is six months, not five years.

The lesson here is to specifically ensure any refusal charges §3802(d) are either dismissed or withdrawn at a preliminary hearing in the counties or a finding of not guilty in Philadelphia Municipal Court. Thereafter, the trial court may only, if the evidence is sufficient, find guilt under §3802(a), a general impairment conviction. Sentencing will then be governed by the DUI statute and ninety days, not the Crimes Code.

The second case is Commonwealth v. William Barker. The case began as a garden-variety motor vehicle infraction, typical traffic stop, and suspicion of DUI.  However, competent counsel convert the case into a discussion of motorists’ right to an alternative blood tests under 75 Pa. C.S.A. §1547(i) and a police officer’s violation of the refusal statute, not the motorist’s.

For those unaware, 75 Pa. C.S.A. §1547 is the Pennsylvania implied consent provision of the Pa motor vehicle code allowing for the police to request the operator of a motor vehicle suspected of DUI to submit to a breathalyzer test or have their blood drawn at an appropriate medical facility.  If they refusal the criminal sentence may be worse and at least a 1 year license suspension separate from the DUI may follow.

The appeals court addressed §1547 in the context of a §3802(d) refusal case. §3802 (d) is the DUI refusal statute law enforcement may charge individuals who have “refused” to submit to any chemical test requested pursuant to §1547. 75 Pa.C.S.A. §3802(d) (2) defines driving under the influence as follows: An individual may not drive, operator, or be in actual physical control of the movement of the vehicle under the influence of drugs or a combination of drugs to a degree to which impairs the ability to drive safely, operate or be an actual physical control of the movement of the vehicle.

Barker testified that he advised the investigating officer he would take any blood test that would establish his innocence, including paying for any test. Barker testified that he suffered a prior medical infection from the hospital to which he was taken, spending seven days there. At trial Barker was found guilty of violating §3802(d) (2) and was sentenced as a refusal.
Barker appealed the guilty finding under the refusal statute arguing that 75 Pa.C.S.A. §1547(i) specifically states: Request by driver for test: Any person involved in an accident or placed under arrest for violation of section… 3802… may request a chemical test of his breath, blood or your peers such request shall be honored when it is reasonably practical to do so.

At trial, the arresting officer did not testify that it was not reasonably practical to take Barker to a different location for the blood draw. Superior Court found this important. “Although section §1547 delineates the tests that may be used and the manners within which the tests must be conducted, §1547(i) does not indicate what constitutes ‘reasonably practical’ for an alternative test and an officer’s ability to reject a motorist’s request for an alternative means of testing at the time of arrest.” Stated another way, the court concluded that an investigating officer “shall honor a motorist’s request when it is ‘reasonably practical’ to do so”.

The court emphasized that the statute “presumes the validity of the motorist’s request and vests the officer with the discretion to decline the request for alternative testing only if the circumstances render the testing incapable of being put into practice with the available means”. The court went on to state that the statutory language does not continence an officer’s “arbitrary refusal” to decline an alternative test request.

The officer may decline the alternative test only if the test requested is not within the means available at the time the testing is sought. While the statute protects the arbitrary whims of motorists who might demand alternate forms of testing, the statute does not allow arbitrary conduct of the police officer in denying motorist’s requests when practical.

Consequently, the court stated that when an arresting officer arbitrarily refuses to allow alternative testing a motorist requests he deprives that motorist evidence admissible in any subsequent prosecution under § 3802, not just those prosecutions under 3802(c) or (d). This is significant in that in any DUI prosecution, an officer must comply with a request for an alternative testing at a different hospital or in a different manner, based upon an appropriate objection, medical condition, or phobia, if such alternate testing is practical under the circumstances.

The court found that when the arresting officer arbitrarily refused Barker’s request for an alternate test which would have produced evidence that may have proven his innocent, the officer substantially impeded Barker’s due process rights. Having found the police, not Barker, violated  § 1547, the appeals court concluded that the arresting officer’s “refusal to honor the statute’s provisions yields a resolution that deprived Barker of admission of evidence that, had it been available, would have been relevant to the charges at issue.” Such violation undermined Barker’s ability to counter the Commonwealth’s allegations and, therefore, warranted granting Barker’s appeal and dismissal of all charges.

Accomplice Liability in Pennsylvania

The recent case of Commonwealth v Toritto, provides a good chance to review ACCOMPLICE LIABILITY IN PENNSYLVANIA. In this case, Toritto was charged with conspiracy based on tangential evidence of involvement in a drug deal. The Commonwealth argued his liability was based upon either conspiracy or accomplice liability.  The jury found him not guilty of conspiracy, but found him guilty of the drug delivery based upon accomplice liability and the specific jury instructions the Commonwealth asked the judge to read to the jury during the trial.

The Commonwealth argued, and the jury found, that Toritto’s criminal liability was based upon allegations of being the driver not the main defendant or co-conspirator who allegedly committed the drug deal. He was the friend who drove himself and another to a drug deal partially aware that he was transporting drugs or money to the deal. Factually, the evidence was that after arriving at a bar and meeting the undercover officer in the bar together, Toritto gave the keys of his car to his co-defendant friend, allowing him to retrieve the narcotics from Toritto’s car. Furthermore, Toritto was intermittently present while the co-defendant discussed the transaction with the undercover agent, but did not participate directly in the transaction. After the drug deal Toritto and his friend were arrested as they left the bar.  The jury found him guilty and he was sentenced to 7-14 years in prison.

Another, more typical, example of accomplice liability is where a friend drives another to a bank for a withdraw and waits in the car. Unbeknownst to the driver, the friend in the bank is forging or kiting checks and committing bank fraud. (This is not a bank robbery with the driver sitting in the get-a-way car aware of the bank robbery taking place.) While there may not be enough facts to establish an actual conspiracy (two persons acting on concert to achieve a common purpose, scheme or design), in some counties, the District Attorney will charge the driver/friend with participating in the drug or bank fraud forgery case as an accomplice.

Toritto took his case to a jury trial, arguing that he had no idea of the drug deal in which his cousin was involved, was not an “associate” of the drug gang, and his “mere presence” at the scene of the crime was insufficient as a matter of law for a jury to find him guilty. He lost.  On Appeal Superior Court, sitting en banc, or with nine appellate judges not three, decided the case was important enough to review and present a clear statement of what is accomplice liability based upon mere presence. The court found held that the evidentiary proof necessary to establish accomplice liability “need not be substantial so long as [the evidence establishes that a defendant’s presence] was offered to the principal to assist him in committing or attempting to commit the crime.” Commonwealth v. Murphy, 577 Pa. 275, 286, 844 A.2d 1228, 1234 (2004).

Applying this standard, Superior Court held that the critical facts presented to the jury allowed it, a reasonable person, to draw the inference that Toritto intentionally aided his friend in the sale of narcotics, first by driving him to the bar, then by remaining with him during the conversations, and finally by giving him the keys to his car to retrieve the drugs. The court stated, “A defendant cannot be an accomplice simply based on evidence that he knew about the crime or was present at the scene. However, the circumstances change if there is additional evidence that the defendant intended to aid in the commission of the underlying crime, and then did or attempted to do so.

The lesson in this case is very clear: The Courts are bending over backwards to send the message that any person who provides even minimal help to another in the commission of a crime, regardless of whether that person benefits from the criminal act, can and will be held accountable as an accomplice to the commission of the criminal act.  The penalty for this liability will be equal to actually committing the crime. The old saying, “In for a penny, in for a pound,” will be propounded by every prosecutor in every jury trial seeking to have a person held accountable for helping another accomplish a crime.

To Testify or Not and Pre-Arrest Silence

The most important decision a criminal defendant confronts is whether or not to testify at trial. If a defendant chooses to testify, many issues arise. One significant issue is potential cross-examination of pre-arrest silence. This arises in the context of prosecutor’s suggesting to the judge or jury, or direct questions to the testifying defendant, “Well did you tell this story to the police before you were arrested?”

In accordance with the 5TH Amendment to the U.S. Const. and Article I, § 9 of the Pennsylvania Constitution, there are four distinct time periods during which a defendant may remain silent or offer a statement during the criminal process: “(1) before arrest; (2) after arrest but before the warnings required by Miranda have been given; (3) after Miranda warnings have been given; and (4) at trial.

In a recent case, Commonwealth v Kuder, 2013 PA Super 35; 2013 Pa. Super. LEXIS 80 (February 25, 2013), this defendant’s pre-arrest silence was presented to a jury after he testified at trial. The Defendant objected and the Superior Court reviewed all the relevant case law discussing the timing of the silence and ruled that arguments to a jury of a defendant’s pre-arrest silence was proper in light of the fact that the Defendant testified at trial and placed his credibility as an issue for the jury to decide.

This is a very difficult proposition to understand. A review of the case law reveals the ruling is correct. To start, the holding in this case does not change the constitutional provision that a defendant’s continued silence throughout all of the proceedings (including trial) cannot be used against him. However, once a defendant testifies at trial, in federal court, impeachment as to a defendant’s silence at any time is permitted because such follows the defendant’s decision to cast aside his cloak of silence at trial.

Pennsylvania’s state court rule is more limited and permits reference to pre-arrest statements (presumably a defendant’s first story of the occurrence) if a defendant testifies at trial. In Pennsylvania, a defendant can not be impeached by the inconsistency between his silence post- arrest, either before or after Miranda warnings are administered, and trial testimony. Commonwealth v. Turner, 454 A.2d 537 (Pa. 1982). This is because an accused has a legitimate expectation that no penalty will attach to a lawful exercise of his constitutional right to remain silent, whether Miranda warnings are given or not. Finding that juries clearly assume silence as a badge of guilt, in Pennsylvania state court prosecutors are not allowed to reference a defendant’s post arrest, pre-Miranda silence when discussing a defendant’s trial testimony to a jury.

There are no constitutional protections pre-arrest as, by definition, there is neither detention nor interrogation. It is in this pre-arrest time period within which statements could have been made, but were not, that are the issue. When a defendant elects to testify, neither the right to remain silent nor due process principles are offended by a prosecutor’s reference to that defendant’s pre-arrest silence, when that reference is used to impeach the testifying defendant’s credibility. This is the time period when either police are “just investigating”, have not “detained” a suspect, and are merely questioning persons who could have knowledge of the case.

Unfortunately, if a charged person, now the defendant, was contacted by the police pre-arrest during that “investigatory period”, and chooses not to talk, but then testifies at trial in his own defense, his pre-arrest silence will be used against him. This happens in the context of a trial when a defendant gets on the stand and presents a version of events that at trial sounds good, but may not have a “ring of truth” of “mesh with the other pieces of the trial evidentiary puzzle” when placed in comparison to that defendant’s pre-arrest silence. The simple factual concern about which the courts let the prosecutors present to the judge, jury, or cross examine a defendant is clear: “Did you tell that to the police when they first meet with you? Why not? “

The lesson learned is be very careful when you decide to testify at trial if pre-arrest opportunities to talk to the police were presented or the “simple explanation” could have been given but was not. That silence may be used as a weapon against you at trial if you testify. As well, motion to suppress must be presented to ascertain the time period of “pre-arrest” and “post-arrest” to eliminate this “pre-arrest” silence time period.

The Perfect Self Defense: An Imperfect and Risky Defense

A person is guilty of unreasonable belief voluntary manslaughter, more colloquially referred to as “imperfect self-defense,” if he knowingly and intentionally kills someone under the unreasonable belief that the killing was justified. See 18 Pa.C.S. § 2503(b). The affirmative defense of self-defense, if accepted, results in an acquittal because it constitutes a justification for the conduct charged. Commonwealth v. Rivera, 603 Pa. 340, 983 A.2d 1211, 1218 n. 6 (Pa. 2009). Commonwealth v. Mouzon, 53 A.3d 738 (Pa. 2012)

After drinking all evening the Defendant, after attached by the victim in a bar and being physically beaten, shot the victim once in the head. He was convicted of first degree murder. He claimed self defense, and was precluded from introducing at trial the victim’s prior criminal record of aggression. The trial court held that Self Defense was an imperfect affirmative defense for which the defendant bore the burden of establishing as an issue at trial, which the Commonwealth must then disprove. See my article in the Legal Intelligencer, http://www.phila-criminal-lawyer.com/CM/Custom/TOCArticles.asp, about this topic and the new law, http://www.phila-criminal-lawyer.com/CM/Custom/Amendments-to-PA-Self-Defense.pdf. This blog is about the 2012 Supreme Court case of Mouzon discussing this now not-so “Perfect Self Defense”.

A claim of self-defense (or justification) requires evidence establishing three elements:
(a) [that the defendant] reasonably believed that he was in imminent danger of death or serious bodily injury and that it was necessary to use deadly force against the victim to prevent such harm;
(b) that the defendant was free from fault in provoking the difficulty which culminated in the slaying; and
(c) that the [defendant] did not violate any duty to retreat.”

A defendant must establish the fact of self-defense by a preponderance of the evidence, before the defense is properly in issue. “There must be some evidence, from whatever source, to justify such a finding.” Once the question is properly raised, “the burden is upon the Commonwealth to prove beyond a reasonable doubt that the defendant was not acting in self-defense.” Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627, 630 (Pa. 1977). The jury instruction may then be given and the issue becomes one of fact for the fact finder.

The Commonwealth sustains that burden of negation “if it proves any of the following: that the slayer was not free from fault in provoking or continuing the difficulty which resulted in the slaying; that the slayer did not reasonably believe that [he] was in imminent danger of death or great bodily harm, and that it was necessary to kill in order to save [him]self therefrom; or that the slayer violated a duty to retreat or avoid the danger.”

Further, as an evidentiary matter, the PA Supreme Court has held that when self-defense is properly at issue, evidence of the victim’s prior convictions involving aggression may be admitted, if probative, either (1) to corroborate the defendant’s alleged knowledge of the victim’s violent character, to prove that the defendant was in reasonable fear of danger, or (2) as character/ propensity evidence, as indirect evidence that the victim was in fact the aggressor. Only those past crimes of the victim that are similar in nature and not too distant in time will be deemed probative, with the determination as to similar nature and remoteness resting within the sound discretion of the trial judge.

Section 505 provides, in relevant part:

§ 505. Use of force in self-protection(a) Use of force justifiable for protection of the person.-The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

(b) Limitations on justifying necessity for use of force.-* * * *

(2) The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:

(i) the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or

(ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he had no duty to take . . . .

Assignment of a burden upon the Commonwealth to disprove self-defense is a relatively recent, and significant, adjustment of law. By its terms, Section 505 does not address the burden of proof or assign the burden to the Commonwealth. Commonwealth v. Mouzon, 53 A.3d 738 (Pa. 2012) In holding that placing the burden on the defendant did not violate due process, decisional law is that federal due process permits States to place a burden on the defendant to prove an affirmative defense by a preponderance of the evidence, so long as the defendant is not thereby required to negate an element of the offense. See also Dixon v. United States, 548 U.S. 1, 126 S. Ct. 2437, 165 L. Ed. 2d 299 (2006) (defense of duress). The affirmative defense of self-defense, if accepted, results in an acquittal because it constitutes a justification for the conduct charged. Commonwealth v. Mouzon, 53 A.3d 738 (Pa. 2012)

The Mouzon case went as for to say “Appellee’s failure to offer any evidence to support the subjective aspect of his claim of self-defense highlights the difficulties associated with assigning the Commonwealth the burden to disprove a defense where necessary facts are peculiarly within the knowledge and control of the defense. In any event, …[the evidence in this case] does not remove the necessity that there be some actual evidence to support the elements of the defense when proffered.

[T]his case illustrates the wisdom of the common law rule placing the burden upon the defendant to prove self-defense. Although the defense ultimately is subject to objective evaluation, the core is the defendant’s “reasonable belief.” That is a matter known peculiarly to the defendant, and there is no logical reason such an actor-sensitive defense should be permitted to arise from counsel’s speculative inferences from the testimony of others. Commonwealth v. Mouzon, 53 A.3d 738 (Pa. 2012)

In other words, a defendant must testify to establish the elements of self-defense. Call to discuss your self-defense case, facts, and the legal burdens.